Aspen the husky has been sentenced to be destroyed. Photo / Supplied
Aspen the husky has been sentenced to be destroyed. Photo / Supplied
An Auckland couple who have campaigned to change the law in an effort to save their condemned husky, Aspen, have now argued their case before a High Court justice as well.
In April, a district court judge found Alexandra and Graham Johnston guilty of owning a dog that killed a chicken and a pet guinea pig named Bert while not on a lead.
They were ordered to pay reparations to the other animal owners and a fine. But the Dog Control Act also requires that Aspen, who was rescued by the couple and their son four years ago, be destroyed.
Justice Edwin Wylie - who heard the couple's appeal against conviction, sentence and dog destruction via an audio-video feed at the High Court at Auckland on Monday - said he will issue his decision at a later date.
"It has become bigger than our dog," Alexandra Johnston told the judge during the hearing, during which she represented herself. "It is an issue for all dog owners - they are being prosecuted for dogs being dogs.
"You are crucifying dogs that are good dogs. In this process, I have not been allowed at any point to prove the nature of this dog."
Aspen the husky has been sentenced to be destroyed. Photo / Supplied
Alexandra Johnston has argued in the past that it is out of proportion to order a dog put down for killing a guinea pig or a chicken when it poses no danger to humans. It is in dogs' nature to chase smaller animals, just as cats sometimes kill birds, she has said.
She on Monday referred to a petition, which she started and has since been filed with Parliament, asking for a law change to give judges more discretion when determining such matters. If attacks are not fatal or against a person, the petition suggests dogs be given three chances before resorting to euthanasia.
But Justice Wylie pointed out that the petition is not part of the record and he could take no heed of it in making his decision. He also explained to her that he is bound by the law as it stands and by interpretations of higher courts.
"The judiciary has become separated from societal beliefs," Alexandra Johnston responded.
Aspen with the Johnstons' son. Photo / Supplied
Aspen first got in trouble for chasing chickens in August 2019, his owners said. But it wasn't until nine months later, as he was again off his lead near Waiake Beach on Auckland's North Shore, when the chain of events occurred that resulted in the court case.
Alexandra Johnston argued that the chicken owners are to blame because, she alleged, the chickens were illegally roaming outside the property when they caught Aspen's attention.
"I was failed by the owner to prevent this occurrence," she said. "This could have been prevented - absolutely could have been prevented.
"I fail to understand why it is I am being prosecuted ... but no one has prosecuted the chicken owner for deliberately releasing their chickens. Someone else's dog is going to be put on death row because the owner involved and council refuse to do anything about it."
There's no direct evidence, she also argued, that her dog physically killed the chickens or the guinea pig at a nearby property. She has argued previously that the guinea pig could have died of fright. There were no indications, she said Monday, that the animal suffered bite marks from her pet.
But lawyer Lanu Faletau, appearing on behalf of Auckland Council, pointed out that it was Graham Johnston - not his wife - who was present when the attack occurred. She disagreed with the couple's account of what happened, pointing out that in the summary of facts for the district court case it was noted that a chicken was seen in the dog's mouth.
"The facts weren't in their favour," Faletau said of the district court proceedings. "The Dog Control Act is a public safety act. The onus is on dog owners ... to have control of the dogs at all times.
"In the current instance, it's quite clear from the evidence the dog was not controlled in any shape or form."
There was also no evidence at trial, Faletau argued, that the chickens were outside the property on the day of the attack.
"By Mrs Johnston's own account, this isn't the first time it has happened, so it's actually quite concerning," she told Justice Wylie.
Alexandra Johnston suggested to the High Court justice that the district court judge had "misunderstood" the summary of facts. Johnston herself, she conceded, "failed miserably in the district court to ask the right questions" and "understand the process".
But it's unjust, she argued, that her pet loses his life when the law hasn't allowed the couple to present evidence of how he behaves around their livestock and other humans, including toddlers.
"He had committed the crime of chasing a chicken that was illegally roaming, then going to chase a guinea pig," she said. "He does not pose any threat to public safety."
